ORDER OF THE GENERAL COURT (Second Chamber)
17 August 2020 (*)
(Procedure — Taxation of costs)
In Case T‑194/13 DEP II,
United Parcel Service, Inc., established in Atlanta, Georgia (United States), represented by A. Ryan, Solicitor, and W. Knibbeler, lawyer,
applicant,
v
European Commission, represented by N. Khan, acting as Agent,
defendant,
supported by
FedEx Corp., established in Memphis, Tennessee (United States), represented by F. Carlin, Barrister, G. Bushell, Solicitor, and N. Niejahr, lawyer,
intervener,
APPLICATION for taxation of costs to be reimbursed by United Parcel Service, Inc. to FedEx Corp., following the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144),
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović (Rapporteur), President, F. Schalin and P. Škvařilová-Pelzl, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 United Parcel Service, Inc. (‘UPS’ or ‘the applicant’) and TNT Express NV (‘TNT’) operate on a global level in the specialist transport and logistics services sector.
2 On 15 June 2012, UPS notified the European Commission of its proposed acquisition of TNT (‘the merger’) under Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1; ‘the Merger Regulation’), as implemented by Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1).
3 By the merger, UPS envisaged obtaining control over the whole of TNT, within the meaning of Article 3(1)(b) of the Merger Regulation, through a takeover bid under Netherlands law.
4 By Decision C(2013) 431 of 30 January 2013, the Commission declared that the notified merger was incompatible with the internal market and with the Agreement on the European Economic Area (EEA) (Case COMP/M.6570 — UPS/TNT Express) (‘the contested decision’).
5 By application lodged at the Registry of the General Court on 5 April 2013, registered under number T‑194/13, UPS brought an action for annulment of the contested decision.
6 By document lodged at the Court Registry on 17 June 2013, FedEx Corp. (‘FedEx’ or ‘the intervener’) sought leave to intervene in support of the form of order sought by the Commission. By order of the President of the Fourth Chamber of the General Court of 21 October 2013, FedEx was granted leave to intervene in support of the form of order sought by the Commission.
7 By judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), the Court annulled the contested decision and, as regards the costs, inter alia ordered the Commission to bear its own costs and to pay those incurred by UPS. FedEx was ordered to bear its own costs.
8 By order of 18 October 2017, United Parcel Service v Commission (T‑194/13 OST, not published, EU:T:2017:742), in proceedings relating to a failure to adjudicate, the Court amended the paragraphs of its judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144) relating to the recovery of costs. In particular, it ordered the Commission to bear its own costs and to pay the costs incurred by the applicant in the main proceedings, except the costs in connection with the intervention, and ordered FedEx to bear, in addition to its own costs, those incurred by UPS in connection with the intervention.
9 By application lodged at the Registry of the Court of Justice on 16 May 2017, the Commission brought an appeal against the judgment of the General Court of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144). By its judgment of 16 January 2019, Commission v UPS (C‑265/17 P, EU:C:2019:23), the Court of Justice dismissed the appeal and ordered the Commission to pay the costs.
10 FedEx did not intervene in support of the Commission in the appeal.
11 By letter of 26 March 2019, UPS inter alia sought recovery from FedEx of the costs relating to its intervention in the main proceedings in Case T‑194/13, in the amount of EUR 372 108.74.
12 By letter of 4 April 2019, FedEx replied that, in its view, the costs claimed were insufficiently substantiated and they had not been necessarily incurred in connection with the intervention. Consequently, it requested UPS to reassess the costs claimed.
13 UPS clarified its request by its letter of 18 July 2019, including records of the time spent by its legal advisers at each stage of the intervention procedure, the average hourly rates applied and a description of the work carried out.
14 By letter of 6 December 2019, UPS reminded FedEx of the content of its letter of 18 July 2019 and repeated its request for payment of the costs which it had incurred in connection with the intervention. In that letter, UPS also stated its intention to bring proceedings before the Court if the parties could not reach an agreement on the recovery of costs.
15 On 13 December 2019, FedEx stated its definitive refusal to pay the costs claimed.
Procedure and forms of order sought
16 By document lodged at the Court Registry on 9 January 2020, the applicant submitted the present application for taxation of costs pursuant to Article 170(5) of the Rules of Procedure of the General Court.
17 The applicant claims that the Court should fix the amount of its costs which it could recover from FedEx in connection with the intervention in the proceedings which gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144) at EUR 372 108.74.
18 In the annex to its application, it provided detailed records of the time spent by its legal and economic advisers for each stage of the proceedings, the hourly rates applied by those advisers and a description of the work they carried out.
19 On the same day, the applicant submitted to the Court an application for taxation of costs against the Commission, registered as Case T‑194/13 DEP, by which it requested that the costs incurred in the main proceedings, which it could recover from the Commission, with the exception of those relating to the intervention, be fixed at EUR 1 175 284.41.
20 In its observations, lodged at the Court Registry on 27 February 2020, the intervener contends that the Court should:
– dismiss the applicant’s application for taxation of costs; and
– fix the amounts recoverable, in accordance with the Court’s settled case-law and having regard to the specific circumstances of the case, at an amount not exceeding EUR 20 000.
Law
21 Under Article 170(1) to (3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court is, at the request of the party concerned, to give its decision by way of an order from which no appeal is to lie, after giving the party concerned by the application an opportunity to submit its observations.
22 According to Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers are regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, secondly, to those which were necessary for that purpose (orders of 24 January 2002, Groupe Origny v Commission, T‑38/95 DEP, EU:T:2002:13, paragraph 28, and of 6 March 2003, Nan Ya Plastics and Far Eastern Textiles v Council, T‑226/00 DEP and T‑227/00 DEP, EU:T:2003:61, paragraph 33).
23 In its application for taxation of costs, the applicant submits that the costs relating to the proceedings before the Court in Case T‑194/13, connected with FedEx’s intervention and incurred between 17 June 2013, the date of the application for leave to intervene, and 7 March 2017, the date of the Court’s judgment, which it seeks to recover from the intervener amount to EUR 372 108.74. More specifically, those costs are broken down as follows:
– EUR 356 224.36 in respect of lawyers’ fees, corresponding to 889.2 hours of work in connection with the intervention, calculated on the basis of various hourly rates of between EUR 205 and EUR 835;
– EUR 15 884.38 in respect of economists’ fees, corresponding to 23.75 hours of work in relation to preparing for the hearing in connection with the intervention, calculated on the basis of various hourly rates of between EUR 663 and EUR 773.5.
24 In its observations, FedEx contended, in essence, that the applicant had not sufficiently substantiated that the costs claimed had been incurred for the purposes of the intervention and that, moreover, they could not be regarded as having been necessarily incurred in connection with the intervention.
Lawyers’ fees
25 With regard to lawyers’ fees, it should be observed that, according to settled case-law, the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees which may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, those courts do not have to take into consideration a national scale fixing lawyers’ fees or any agreement concluded in that respect between the party concerned and its agents or advisers (see order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 10 and the case-law cited).
26 It is also settled case-law that, in the absence of provisions of EU law laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the subject matter and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest that the parties had in the proceedings (see orders of 31 January 2012, Commission v Kallianos, C‑323/06 P-DEP, not published, EU:C:2012:49, paragraph 13, and of 29 November 2016, Brune v Commission, T‑513/16 DEP, not published, EU:T:2016:709, paragraph 29 and the case-law cited).
27 It is in the light of those considerations that the Court must assess, in the present case, the amount of the costs recoverable in respect of lawyers’ fees.
28 In the present case, the applicant sought reimbursement of the fees of a team of 20 professionals in a law firm comprising partners, senior lawyers, junior lawyers and trainees for the work carried out by that team between 30 January 2013 and 7 March 2017.
29 In support of its application, the applicant submitted a breakdown indicating the number of hours spent by each member of the team over three specific periods during the proceedings before the Court, together with a brief description of the tasks performed. That breakdown can be summarised as follows:
– for the period from June 2013 to May 2014, in total 498.4 hours of work were spent on preparing non-confidential versions of the procedural documents and annexes to which the intervener was to have access;
– during the period between August and September 2014, in total 195.4 hours of work were spent drafting observations on the statement in intervention; and
– in respect of preparing for and participating in the hearing of 6 April 2016, in total 195.4 hours are claimed on account of FedEx’s intervention, which correspond to a third of all the hours spent by the applicant’s lawyers on preparing for that hearing and participating in it.
30 It is necessary to examine whether, bearing in mind the subject matter and nature of the proceedings, their significance from the point of view of EU law, the complexity of and difficulties presented by the case, the financial interests which the parties had in the proceedings and the amount of work carried out, the assessment of the costs claimed in respect of lawyers’ fees is justified.
31 In the first place, as regards the nature and subject matter of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case, it should be noted that the action concerned the application of Article 4 of the Merger Regulation.
32 More specifically, the action sought annulment of a Commission decision, adopted following an in-depth examination procedure, declaring the merger notified by UPS to be incompatible with the internal market and the EEA Agreement.
33 Apart from the difficulties inherent in merger control, which requires a prospective analysis of the reference market, the contested decision was unusual in that it prohibited the implementation of the proposed operation on the ground that it would create a significant impediment to effective competition in several Member States.
34 Furthermore, the Commission’s assessment was based on an econometric model designed to anticipate the effects of the merger on prices on the various national markets. That model was challenged by the applicant, on account, in particular, of the Commission’s failure to disclose the version of that model which it had relied on in the contested decision.
35 The action was therefore of a complex nature which, moreover, related to important questions of principle for EU law, in particular as regards the burden of proof on the Commission where it relies on econometric models in order to prohibit a merger.
36 In the second place, it must be acknowledged that the case involved significant financial interests for the applicant. First, the value of the operation notified to the Commission was, at the time, estimated at EUR 5.2 billion. Second, because of the Commission’s refusal to allow the implementation of the proposed merger, the applicant was exposed to the risk that a competitor would acquire the target company.
37 As regards, in the third place, the amount of work that the proceedings before the Court may have generated for the applicant’s advisers in connection with the intervention, the following considerations should be noted.
38 It should be borne in mind that, according to settled case-law, although it is open to the applicant to entrust the protection of its interests to several advisers at the same time, so as to obtain the services of more experienced lawyers while entrusting the more time-consuming work to lawyers charging lower fees, the primary consideration of which the Court must take account is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (orders of 6 March 2003, Nan Ya Plastics and Far Eastern Textiles v Council, T‑226/00 DEP and T‑227/00 DEP, EU:T:2003:61, paragraph 44; of 29 October 2004, Schneider Electric v Commission, T‑77/02 DEP, not published, EU:T:2004:321, paragraph 58, and of 29 March 2007, First Data and Others v Commission, T‑28/02 DEP, not published, EU:T:2007:101, paragraph 29).
39 In addition, it must be borne in mind that the intervener was ordered to pay the costs of the applicant solely in connection with its intervention. In that regard, it should be recalled that, as a general rule, the procedural task of a principal party is significantly aided when responding to an intervention. As an intervention is, by its nature, subordinate to the main action, responding to an intervention cannot therefore present as many difficulties as the principal action, save in exceptional cases (order of 29 March 2007, First Data and Others v Commission, T‑28/02 DEP, not published, EU:T:2007:101, paragraph 32).
40 In the present case, the intervener was one of the applicant’s direct competitors in some segments of the reference market. It had opposed the proposed merger in the administrative procedure. Although, admittedly, the grounds for that objection had to be known to the applicant’s representatives, who had also assisted it during the administrative procedure, the fact remains that the intervention of a competitor as important as FedEx in support of the Commission merited particular attention from those representatives. Moreover, faced with the intervention of its direct competitor, which resulted in that competitor having access to the file of the case before the Court, the applicant had not only the right but also the obligation to safeguard confidential and commercially sensitive information concerning it.
41 Furthermore, it should be noted that the ability of the Courts of the European Union to assess the value of work carried out is dependent on the accuracy of the information provided (order of 29 October 2004, Schneider Electric v Commission, T‑77/02 DEP, not published, EU:T:2004:321, paragraph 59).
42 As regards, first, the tasks connected with preparing the non-confidential versions of the procedural documents to which FedEx was to have access as intervener, it is apparent from the breakdown submitted by the applicant that a total of 498.4 hours of work was spent on them, of which 9.7 hours were spent by two partners, 81 hours by two senior lawyers and 407.7 hours by junior lawyers and trainees.
43 In that regard, it must be recalled that FedEx was granted leave to intervene in support of the form of order sought by the Commission by order of the President of the Fourth Chamber of the General Court of 21 October 2013, which also ordered the disclosure to the intervener of non-confidential versions of all the procedural documents served or to be served on the parties. Consequently, the applicant had to prepare non-confidential versions of the pleadings which were sent to the intervener, inter alia, the 50-page application, the 27-page reply, the 60-page defence and the 26-page rejoinder. In addition, it had to prepare non-confidential versions of the annexes to the application, which included, inter alia, 469 pages (Annex A.1), 364 pages (Annex A.3), 9 pages (Annex A.6), 27 pages (Annex A.9), 32 pages (Annex A.10), 26 pages (Annex A.11), 7 pages (Annex A.12), 14 pages (Annex A.13), 18 pages (Annex A.14), 189 pages (Annex A.16), 232 pages (Annex A.17), 401 pages (Annex A.18), 1 page (Annex A.19), 18 pages (Annex A.32) and 7 pages (Annex A.40).
44 While it is true that the volume of documents that the applicant had to analyse in order to identify the confidential information to be redacted was very large, a total of 498.4 hours of work, equivalent to more than 60 individual working days of 8 hours, is nonetheless excessive, taking into account in particular the fact that the applicant’s representatives, having also represented it in the administrative procedure, were already familiar with the file in question. Furthermore, as the intervener correctly observed, the participation of two partners in that type of activity, for a total of 9.7 hours, and two senior lawyers, for a total of 81 hours, even for the sole purpose of supervision, is not entirely necessary.
45 Secondly, as regards the drafting of the observations on the granting of leave to intervene and the observations on the statement in intervention, the applicant claims that, in total, 195.4 hours of work were spent on it, including 53 hours by two partners, 16.5 hours by a senior lawyer and 125.9 hours by junior lawyers.
46 In that regard, it must be recalled that the applicant submitted observations on FedEx’s application for leave to intervene, in which it raised objections to that intervention. That document comprised four pages. The applicant also submitted observations on the statement in intervention. In that document, which comprised 22 pages in total, the intervener focused on and expanded upon three of the five pleas addressed by the Commission in its defence. In particular, it developed specific arguments in relation to its competitive position and substantiated them with three economic reports which had not been submitted in the administrative procedure and which required particular attention. The statement in intervention had 13 annexes, 9 of which were confidential documents, including the 3 abovementioned economic experts’ reports (Annexes I.4, I.5, and I.8).
47 The applicant’s observations on FedEx’s statement in intervention were submitted on 17 pages with five annexes, the first of which comprises a page of the calendar of Phase II of the administrative procedure (Annex JA.1), the second, an economic analysis carried out by the Commission in 2012-2013 and an article (Annex JA.2), the third, a 10-page summary of the decision published in the Official Journal (Annex JA.3), the fourth, the transcript of presentations from a financial consultancy firm to investors, dated 9 and 10 October 2012, which had been annexed to the application (Annex A 3, response to the statement of objections) and which constituted a document of 88 pages (Annex JA.4) and, the fifth, a FedEx presentation of 28 pages (Annex JA.5).
48 Admittedly, the observations on FedEx’s statement in intervention were technical and complex. In particular, the applicant had to dispute the intervener’s arguments relating to the Commission’s analysis of the net effects of the merger on prices, the arguments concerning possible efficiency gains linked to the merger, the arguments relating to FedEx’s closeness as a competitor and those relating to the latter’s expansion plans.
49 However, it should be noted at the outset that, as observed by the intervener, the applicant’s lawyers already had in-depth knowledge of the case file in question, since they represented the applicant in the administrative proceedings, brought the main action and responded to the defence. Their work has thus been facilitated, and the time spent on the response to the intervention reduced (see, to that effect, order of 9 September 2015, Smurfit Kappa Group v Commission, T‑304/08 DEP, not published, EU:T:2015:707, paragraph 79 and the case-law cited).
50 In those circumstances, spending 195.4 hours of work, a quarter of which were spent by partners, on preparing and drafting those observations, as technically complex as they may be, is excessive, having regard in particular to the fact that that type of argument had already been dealt with, at least in part, by the applicant’s representatives during the administrative procedure and in response to the Commission’s defence.
51 As regards, thirdly, the work dedicated by the applicant’s lawyers to responding to the intervention during the oral part of the procedure, the applicant claims that a third of the costs of preparing for and participating in the hearing were caused by FedEx’s intervention. In that regard, it maintains that it had to devote some time to preparing oral observations in response to the intervener’s written pleadings, to which a relatively large amount of time was granted for oral argument. In addition, the applicant submits that its lawyers had to spend time dealing with the intervener’s request that the hearing be held in camera.
52 Thus, it follows from the breakdown submitted by the applicant that, in total, 195.4 hours were spent preparing for and participating in the hearing.
53 It must be stated that the applicant has not indicated the number of hours spent preparing for and participating in the hearing specifically in connection with FedEx’s intervention. The applicant itself acknowledges that it made an estimate on the basis of the total number of hours which its representatives spent on the oral part of the procedure. Such an incomplete explanation does not enable the Court to assess the value of the work carried out, within the meaning of the case-law cited in paragraph 41 above.
54 It is undisputed that, at the hearing, time in which to present oral argument was indeed given to the intervener, which also had to reply to questions put by the Court, and that the applicant also had to respond to the intervener’s oral arguments and answers. However, as the intervener correctly submits, the description provided by the applicant is not sufficiently precise for it to be possible to determine which activities described in the breakdown were specifically linked to the intervention.
55 According to the minutes of the hearing of 6 April 2016, it began at 10.08 and ended at 17.27, with a break between 12.30 and 14.00. In addition, it is stated that the applicant, the Commission and the intervener each presented oral argument and that each of the three parties subsequently answered the Court’s questions. Furthermore, it is specified that the hearing was held in camera and that, under an agreement between the parties, only persons who signed a confidentiality agreement were able to participate in it. In that regard, it should be noted that, on 18 March 2016, the Court asked the three parties for their observations on the possibility of holding the hearing in camera and set them a deadline of 31 March 2016 for the submission of those observations. The Court’s decision on holding the hearing in camera was sent to the parties on 5 April 2016.
56 The 195.4 hours of work which, according to the applicant, its lawyers had to spend preparing for the hearing, on the ground that it was necessary to overcome the issues raised by the arguments put forward by FedEx in its statement in intervention and to prepare for possible questions put by the Court, are excessive. At the stage of the oral part of the procedure, the applicant’s lawyers had already had the opportunity to familiarise themselves with the arguments put forward by FedEx, in particular in order to respond to them in their observations on the statement in intervention. In addition, FedEx’s participation in the hearing had only a limited impact on the total duration of the hearing, which was 6 hours. Furthermore, even if the hearing was held in camera solely on account of the intervener’s involvement, which the applicant has not proved, the drafting of one page of observations, submitted in that regard by the applicant on 31 March 2016, cannot justify a significant number of hours being spent on it, in particular by experienced lawyers.
57 In the fourth place, as regards the hourly rates applied by the applicant’s lawyers, it follows from the case-law that high lawyers’ fees may be appropriate only to remunerate the services of a particularly experienced professional, capable of working quickly and effectively (order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 52).
58 In the present case, the hourly rates applied by the applicant’s lawyers were between EUR 205 per hour, for the least experienced lawyers, and EUR 835 per hour for a partner. In the light of the hourly rates of the 20 lawyers involved, UPS submits an average hourly rate of EUR 412.
59 It must, first, be noted that an hourly rate of EUR 835 charged individually by some of UPS’ lawyers cannot be considered, in respect of recoverable costs, to be objectively necessary for the purposes of the proceedings before the Court, even in order to remunerate the services of a particularly experienced professional.
60 Secondly, in the case of a team of 20 lawyers, it is appropriate to take an average hourly rate into account. It should therefore be fixed at EUR 400, a rate which has been deemed appropriate for competition cases (see, to that effect, order of 25 October 2018, Socitrel and Companhia Previdente v Commission, T‑413/10 DEP, T‑414/10 DEP and T‑409/13 DEP, not published, EU:T:2018:751, paragraph 99).
61 Thirdly, as the intervener correctly observed, it cannot be ruled out, in the absence of very precise information on the tasks carried out by the team of 20 lawyers in connection specifically with the intervention, that there might have been some duplication of their efforts.
62 Fourthly, while it appears that an average hourly rate of EUR 400 is consistent with that of a particularly experienced professional, those high lawyers’ fees may be appropriate only to remunerate the services of such a professional who is capable of working quickly and effectively (see, to that effect, order of 9 September 2015, Smurfit Kappa Group v Commission, T‑304/08 DEP, not published, EU:T:2015: 707, paragraphs 80 and 87). Therefore, as the intervener correctly argues, any remuneration at such a level must be counterbalanced by a strict evaluation of the total number of hours of work necessary.
63 In the light of the foregoing considerations, the Court considers that the costs recoverable by the applicant from the intervener in respect of lawyers’ fees incurred in connection with the intervention can be assessed on an equitable basis at EUR 56 000.
Economists’ fees
64 The applicant seeks reimbursement of the economists’ fees which it incurred in order to prepare for the hearing in connection with the intervention. Thus, it maintains that the participation of economic experts was justified in the present case by the economic and econometric assumptions on which the Commission based its analysis in the contested decision and which had been addressed by FedEx in its intervention. In that regard, the applicant estimates that a third of the time that those economists spent preparing for the hearing is attributable to the intervention. Furthermore, it states that, of the two economic consultancy firms which it hired, only one dealt with the pleas addressed in that intervention. More specifically, it claims EUR 15 884.38 in respect of economists’ fees, corresponding to 23.75 hours of work by three economists applying various hourly rates between EUR 663 and EUR 773.5.
65 In that regard, the intervener contends, in essence, that the applicant has not demonstrated that the costs claimed in respect of hiring economic experts in preparation for the hearing were necessarily incurred in connection with the intervention.
66 It must be recalled that, given the essentially economic nature of the assessments carried out by the Commission in merger control procedures, the involvement of economic experts in addition to the work of legal counsel may, sometimes, be justified and thus give rise to costs that may be recovered pursuant to Article 140(b) of the Rules of Procedure (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 55; see also, to that effect, order of 19 December 2006, WestLB v Commission, T‑228/99 DEP, EU:T:2006:405, paragraph 78 and the case-law cited).
67 In order for that to be the case, such involvement of economic advisers must be objectively necessary for the purposes of the proceedings. That may in particular be the case where the economic expert’s report turns out to be crucial to the outcome of the case, such that its production by a party saves the Court from having to order the commissioning of an expert’s report pursuant to its powers of inquiry under Article 91(e) of its Rules of Procedure (order of 19 December 2006, WestLB v Commission, T‑228/99 DEP, not published, EU:T:2006:405, paragraph 79).
68 More specifically, although it cannot be ruled out that the work of an economic expert may be necessary in order to respond to the issues raised by the intervention, the fact remains that the party seeking reimbursement of the related fees as recoverable costs must prove that they were actually incurred in connection with that intervention, in particular because the economic studies in question were submitted or, at the very least, cited in support of the observations on the intervention (see, to that effect, order of 29 March 2007, First Data and Others v Commission, T‑28/02 DEP, not published, EU:T:2007:101, paragraphs 40 and 41).
69 Although, admittedly, having regard to the economic nature of the present case and taking into account FedEx’s intervention, which was supported by three economic studies, the involvement of an economic expert might have proved necessary, it must be noted that, in the context of the applicant’s observations on the statement in intervention, no economic study produced by the economic experts whose fees it is claiming was submitted or cited. Similarly, even though economic experts hired by the applicant were present at the hearing, the applicant has not specified how the costs in respect of their participation at the hearing were specifically incurred in connection with the intervention. Furthermore, as the intervener correctly argues, its assertions were, in essence, made in support of the arguments put forward by the Commission in the contested decision and had already been the subject of debate in the administrative procedure.
70 Thus, in the absence of further details of the work actually carried out by the economists in connection with the intervention, it is not possible for the Court to find that the costs claimed in that respect were actually incurred by the applicant as a result of that intervention and that they were objectively necessary for the purposes of the proceedings, inter alia for responding to the arguments raised by the intervener.
71 In those circumstances, the Court must reject, in its entirety, the applicant’s claim for reimbursement of EUR 15 884.38 in respect of economists’ fees.
72 In the light of all the foregoing considerations, and in the absence of an application for taxation of the costs relating to the present taxation of costs proceedings, the total costs recoverable by the applicant from FedEx can be assessed on an equitable basis at EUR 56 000.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
The total amount of the costs to be reimbursed by FedEx Corp. to United Parcel Service, Inc., is fixed at EUR 56 000 (fifty-six thousand euro).
Luxembourg, 17 August 2020.